Arup Kumar Goswami, J@mdashHeard Mr. P. Khataniar, learned counsel for the appellant. None has entered appearance on behalf of respondents despite service of notice.
2. This appeal, preferred by the plaintiff, is directed against the judgment and decree dated 23.6.2004 passed by the learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 24/2002 dismissing the appeal and affirming the judgment and decree dated 27.9.2002 passed by the learned Civil Judge (Junior Division), Hojai in Title Suit No. 20/2000.
3. By an order dated 10.01.2005, this Second Appeal was admitted to be heard on the following substantial questions of law:
"1. Whether the sale deed (Ext. 3) was legally proved as required under Section 68 of the Indian Evidence Act?
2. Whether the suit of the plaintiff can be dismissed by holding that the right, title and interest of the defendants has ripen by adverse possession without there being any pleading to that effect in the written statement?"
4. At the very outset, Mr. Khataniar has submitted that substantial question of law No. 1 may be modified as to whether the sale deed, Ext.-3, was legally proved inasmuch as there is no requirement in law for attestation of a sale deed.
5. I find substance in his argument and, accordingly, the substantial question of law No. 1 is re-framed as under:
"Whether the sale deed, Ext.-3, was proved in accordance with law?"
6. The case of the plaintiff is that the suit land measuring 1 bigha 2 katha of "bari land" representing the entire land of Dag No. 319 under Periodic Patta No. 39 of Buragaon Kissam was annual patta land belonging to one Sabal Kurmi. On payment of requisite premium, the suit land was converted to periodic patta on 13.01.1973 and the patta was issued in the name of Sabal Kurmi. While in possession, Sabal Kurmi, being in need of money, sold the suit land to the plaintiff by a registered sale deed, being Sale Deed No. 7910/74 dated 04.09.1974, and delivered possession. The plaintiff already had a homestead land across the intervening public road and the defendants'' predecessor, Prafulla Kumar Das, a refugee from Bangladesh who was working as a wage earner, was allowed to stay on the said land temporarily without payment of any rent. On or about 01.01.1990, he built a small bamboo thatched house on a small part of the land and started residing in the house with his wife and children and, thereafter, in the last part of 1991, the plaintiff asked the predecessor of the defendants, Prafulla Kumar Das, to vacate the suit land. He prayed for some time to vacate and, eventually, he died in 1992. Request for vacating the suit land was made by the plaintiff from time to time but no heed was paid by the defendants and, on the contrary, they were extending their occupation of land by constructing more houses. On 1.10.2000, once again demand was made to vacate the suit land and the defendants refused to vacate the suit land by stating that they have right, title and interest in respect of the suit land. Under these circumstances, the suit was filed praying for declaration, khas possession and permanent injunction in respect of Schedule-A land.
7. In the written statement, in Paragraph 7, it was pleaded that "the suit is barred by adverse possession and it is not maintainable for limitation". It was also pleaded that the plaintiff is estopped from challenging the title for long possession of the suit land by the defendants. That the suit land originally belonged to one Sabal Kurmi is admitted and it is pleaded that by a registered sale deed No. 3375/77, Sabal Kurmi had sold the suit land to the predecessor-in-interest of the defendants and delivered possession and, since then, they, along with their predecessor-in-interest, were in occupation of the suit land for more than 33 years. Description of the northern boundary of the suit land was stated to be wrong and it was pleaded that the suit was filed on imaginary facts. It is also pleaded that the defendants have dwelling houses on the suit land.
8. On the basis of the pleadings, the learned trial court framed the following issues:
"1. Whether the suit is maintainable?
2. Whether the suit is barred by the principle of waiver, estoppel and acquiescence?
3. Whether the suit property has been described correctly and is identifiable?
4. Whether the suit is barred by law of limitation?
5. Whether the plaintiff has right, title and interest over the suit land?
6. Whether the defendant''s predecessor-in-interest was in permissive possession of the suit land under the plaintiff?
7. Whether the plaintiff is entitled to the decree as prayed for."
9. During trial, plaintiff examined four witnesses and the defendants examined five witnesses. Both the sides exhibited a number of documents.
10. The learned trial court took up issue Nos. 4, 5 and 6 together.
11. The learned trial court held that the plaintiff had not examined Sabal Kurmi or any witness to prove execution of the sale deed and that even if it was assumed that the sale deed was executed by Sabal Kurmi, there was no evidence to show that possession was handed over to the plaintiff and, accordingly, opined that sale without delivery of possession is not a sale at all. The learned trial court also held that Ext.-''Ka'', the sale deed executed in favour of the predecessor-in-interest of the defendants, was duly proved and that the defendant had been in possession of the land since 1976 on the basis of the purchase from Sabal Kurmi. At the same time, it also recorded that Ext.-''Ka'' may be an invalid sale deed in the eye of law but purchaser''s possession could not be assailed. Two categorical findings were recorded by the learned trial court against the plaintiff: (i) execution of the sale deed by Sabal Kurmi was not proved and (ii) the plea of permissive possession was also not proved. The defendants'' possession having been found for more than 12 years, it was held that the suit was barred by adverse possession. While discussing issue Nos. 2 and 3, the learned trial court also held that there is some doubt with regard to the description of the boundary.
12. The learned lower appellate court observed that Section 65 of the Indian Evidence Act requires that before secondary evidence is adduced, it must be proved that the original of the instrument was destroyed or lost and if the same is not satisfactorily proved, secondary evidence cannot not be admitted.
13. The learned lower appellate court held that though the plaintiff adduced secondary evidence in respect of the sale deed, Ext.-3, he had not mentioned anything about the loss of the original sale deed in the plaint. That apart, the plaintiff did not make any attempt to examine Sabal Kurmi or his legal heirs or, for that matter, any witness of the sale deed to prove execution. Though mutation was granted in favour of the plaintiff, it was observed that there was no specific evidence when the possession was delivered to the plaintiff. The learned lower appellate court also held that sale deed, Ext.-''Ka'', is also not valid in law. The learned lower appellate court concurred with the finding of the learned trial court that the suit is barred by adverse possession. However, the finding of the learned trial court that there was confusion with regard to the boundary of the suit land as recorded by the learned trial court was held to be unfounded.
14. Mr. Khataniar, learned counsel for the appellant, by drawing attention to the written statement, has submitted that the defendant did not deny the execution of the sale deed by Sabal Kurmi, which was prior in point of time, in favour of the plaintiff. The plaintiff had stated in his evidence that by the registered deed executed by Sabal Kurmi, he purchased the suit land. He has submitted that as the original of the sale deed was not traceable, vide petition dated 15.2.2003, leave was sought to adduce secondary evidence in respect of the sale deed in question. The learned counsel submits that Ext.-3, the certified copy of the sale deed, was also admitted in evidence without any objection and no plea could be taken now with regard to admissibility of Ext.-3, certified copy of the sale deed. The plaintiff in his evidence also had stated that the original of the sale deed had been lost. The plaintiff had also examined the Record Assistant of the Office of the District Registrar as PW2 with the permission of the court and he had proved Ext.-3. He had also deposed the contents of the sale deed which was recorded in volume No. 45 of 1974, page No. 1, of Sub-Registrar''s office. There is no doubt that certified copy of the sale deed is admissible in evidence and there is also evidence adduced by the plaintiff that the predecessor-in-interest of the defendants was allowed to reside by way of permissive occupation in the suit land. The learned counsel submits that no specific plea was taken by the defendant in the written statement to sustain the plea of adverse possession. The defendants'' case was alleged possession on the basis of the sale deed Ext.-''Ka'' and a casual statement was made in the written statement that the suit was barred by adverse possession. Even if it is assumed that defendants were in possession of the suit land from date of purchase in 1977, the plea of the defendants that they were in possession of the suit land for 33 years is absolutely false. If they were in occupation of the plot of land on the basis of purchase, they are owners of the plot of land and there could not have been any occasion to raise the plea of adverse possession, because such a plea of adverse possession cannot be raised against oneself. The learned counsel submits that the finding recorded by the learned courts below on the basis of possession in absence of elements constituting any adverse possession is wholly misconceived in law. It is submitted by him that findings recorded by the learned courts below with regard to plea of adverse possession is perverse and not sustainable in law. In support of the submission, the learned counsel places reliance on the following judgments:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
15. I have considered the submission of the learned counsel for the appellant and have perused the materials on record.
16. Chapter-V of the Indian Evidence Act, 1872 deals with documentary evidence. Section 61 provides that the contents of documents may be proved either by primary or by secondary evidence. Primary evidence under Section 62 means the document itself produced for the inspection of the court. Secondary evidence, under Section 63, means and includes: (i) Certified copies given under subsequent provisions; (ii) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (iii) Copies made from or compared with the original; (iv) Counterparts of documents as against the parties who did not execute them and (v) oral accounts of the contents of a document given by some person who has himself seen it. Section 79 of the Evidence Act also mandates that Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document which is by law declared to be admissible of any particular fact and which purports to be duly certified by any officer duly authorized either by the Central or by the State Government, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
17. Order XIII of the Civil Procedure Code needs to be considered while discussing documentary evidence. Order XIII Rule 1 CPC provides that original documents are to be produced on or before the settlement of issues. Under Rule 3, the court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible by recording the grounds of such rejection. Order XIII Rule 4 CPC provides that every document admitted into evidence shall be endorsed with the following particulars: (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted. The endorsement shall be signed or initialed by the Judge. An objection in relation to admissibility of a document should be raised before such endorsement is made and the court is required to form its opinion on the question of admissibility and express the same on which opinion it will depend as to whether the document being endorsed is admitted or not admitted into evidence. In R.V.E. Venkatachala (supra) and Dayamathi Bai (Smt) (supra), the Apex Court discussed when objections as to the admissibility of documents into evidence are to be taken.
18. In R.V.E. Venkatachala Gounder (supra), it was held as follows:-
"20. The learned counsel for the defendant-respondent has relied on
19. Thus, objections as to admissibility of documents into evidence can be classified into two classes: (i) an objection that the document, which is sought to be proved, is itself inadmissible in evidence; (ii) when the objection is not with regard to the admissibility of the document but is directed against the mode of proving it alleging the same to be irregular or insufficient. Even though an objection was not raised in respect of a document, which was, per se, inadmissible, and such document is marked as an exhibit, one is not precluded from raising a plea even at a later stage, may be even in the appellate stage, that the document was inadmissible in evidence. In a case where the objection pertains to the mode of proof, the objection must be taken when the evidence is tendered and this principle is based on rule of fair play. If an objection is taken at the time when the document is sought to be tendered into evidence, no prejudice will be caused to the other party in the sense that the party, tendering the evidence, can cure the defect and it can resort to such steps as may be required to make the mode of proof regular. In such cases, once the document is marked as an exhibit, it is impermissible to allow a party to take a plea that the mode adopted for proving the document is irregular as failure to raise a prompt and timely objection amounts to waiver of the necessity for formal proof of document.
20. In Manmatha Ranjan Trivedi (supra), this Court had laid down that if a document is taken into evidence without sufficient foundation being laid, but no objection was taken with regard to such tendering of evidence, no objection can be taken later on.
21. The learned Lower Appellate Court in the instant case questioned, in essence, the admissibility of Ext.-3 on the touchstone that the plaintiff had not pleaded about the losing of the original and, thus, the foundation for exhibiting certified copy of the original did not exist. In the first place, the defendant had not raised any objection and Ext.-3 was marked as an exhibit and, that apart, it is not correct that the plaintiff had not laid the foundation for proving the sale deed by way of secondary evidence. One may lose an original document during the course of the trial and, in such an event, there is no question of making a reference in the plaint about losing of the original document. In the instant case, much before the Ext.-3 was sought to be introduced into evidence, an application was filed by the plaintiff seeking indulgence of the Court to allow him to lead evidence by way of secondary evidence relating to Ext.-3 and also to summon a witness from the office of the Sub-Registrar along with the records to prove the contents of the sale deed contained in the original Volume Register of the Sub-Registrar''s office. On that very day itself, permission was accorded, as prayed for by the plaintiff and, therefore, the reasoning of the learned Lower Appellate Court that Ext.-3 is inadmissible cannot be sustained.
22. Section 54 of the Transfer of Property Act, 1882 defines ''sale'' as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer or, such person as he directs, in possession of the property.
23. Therefore, to be a valid sale under the law, it is not required to be executed in presence of attesting witnesses and, if that be so, it will not be imperative to examine the attesting witnesses even if there are some attesting witnesses in the sale deed. Therefore, Section 68 of the Evidence Act would not be attracted in the case of a registered sale deed. In order to prove a sale deed, it is also not necessary, in all circumstances, to examine the vendor or the attesting witnesses or even the scribe.
24. Part-XI of the Registration Act, 1908 provides for the duties and powers of the Officers. Section 51 refers to the Register books to be kept in the several Registering offices; Section 52 prescribes the duties of the Registering Officers when documents are presented. Section 53 mandates that the entries are to be numbered consecutively. Section 54 provides that every office in which any of the books are to be kept, current indexes of the contents of such books and every entry in such indexes shall be made, so far as practicable, immediately after the Registering Officer has copied or filed a memorandum of the document to which it relates. Section 55 provides that four indexes, namely, Index No. I, Index No. II, Index No. III and Index No. IV, are to be made by Registering Officers. Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4. Section 57 provides for the Registering Officer to allow inspection of certain books and indexes, and to give certified copies of entries. Section 57(5) provides that all copies given under this section shall be signed and sealed by the Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents. Section 59 requires that the Registering Officer shall affix the date and his signature to all endorsements made under Section 52 and 58, relating to the same document and made in his presence on the same day. Section 60 provides for endorsing a certificate containing the word "registered", together with the number and page of the book in which the document has been copied, when any document is presented for registration under the provisions of the Act. Sub-Section (2) of Section 60 stipulates that such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act, and that the facts mentioned in the endorsement, referred to in section 59 have occurred as therein mentioned.
25. In view of the scheme of the Registration Act, when a document is registered under the provisions of the Registration Act, its due execution and registration has to be presumed. This presumption is, however, a rebuttable presumption and a party is entitled to rebut the presumption associated with a registered document by producing cogent evidence to the contrary.
26. In Food Corporation of India (supra), the Apex Court had laid down that once a document is properly admitted, the contents of the document are also admitted into evidence though those contents may not be conclusive evidence. In Kalyan Singh (supra), the Apex Court had laid down that an ordinary copy of a sale deed submitted by the parties along with the original for the purpose of registration, in absence of any evidence regarding contents of the original deed, cannot be considered as secondary evidence.
27. The legal position, thus, is that the certified copy of a registered sale deed can be produced as secondary evidence in absence of original deed, but an ordinary copy of the sale deed, stating to be a copy submitted by the parties along with the original deed for registration, in absence of any evidence regarding contents of the original deed, cannot be considered as secondary evidence and Court must exclude such evidence. Further, once a document is properly admitted, the contents are also admitted into evidence though the contents may not be conclusive evidence.
28. It is also necessary, at this juncture, to state that in what manner a document has to be proved would naturally depend on the kind of pleas put forward by the respective parties. In a given case, if execution of a document is denied, it will be necessary to prove the execution of the document, but in that case, it may not be essential to prove the contents of the document also. At the same time, if a plea is taken with regard to the contents of the document, it will be necessary to adduce evidence regarding the contents. It is not possible to lay down all kind of situations in a straight jacket formula and, as indicated, nature of proof would be dependent on the pleas taken. If the truth of the fact stated in the document is in issue, mere proof of handwriting and execution would not furnish evidence of the truth of the facts or the contents of the document. It will be obligatory, in order to succeed, that truth or otherwise of the facts and contents of the documents will have to be proved by admissible evidence.
29. Delivery of possession is not a condition precedent for a valid sale. The learned Trial Court went amiss on this score assuming that there was no delivery of possession. The fact that the name of the plaintiff was mutated on 20.10.76, vide Ext.-2, cannot be altogether brushed aside as mutation connotes title and possession. As held in Vimal Chand Ghevarchand Jain (supra), the right of possession over a property is a facet of title and as soon as a deed of sale is registered, the title passes to the vendee and the vendor, in terms of the stipulations made in the sale deed, is bound to deliver possession of the property sold.
30. In the instant case, against the categorical averments made by the plaintiff regarding his purchase of the suit land from Sabal Kurmi on 04.09.74 by registered sale deed No. 7910/74 and subsequent delivery of possession to him, there is no denial by the defendants in the written statement and such averments of the plaintiff had remained unassailed. Even if it is not considered to be an admission, though it may be possible to take such a view, the plaintiff, nevertheless, to prove the certified copy of the sale deed, examined PW2. It is difficult to hold, as held by the learned Courts below, that the plaintiff failed to prove due execution of Ext.-3. In the first place, no plea whatsoever was taken by the defendant with regard to the sale deed in question and their only plea was in respect of Ext.-''Ka'', the subsequent sale deed executed by the vendor of the plaintiff. In the absence of any demur or objection, it was not necessary for the plaintiff to examine the witnesses in the form of scribe or the attesting witnesses to prove the sale deed, i.e. Ext.-3.
31. On what count Ext.-''Ka'' is disbelieved by the Courts below even after having held that the plaintiff failed to prove Ext.-3 is not discernible. If Ext.-3 is not proved, then there is no reason as to why Ext.-''Ka'' should be held to be invalid. However, if Ext.-3 is held to be proved, no title can pass on in respect of the same property to the subsequent vendee. On a totality of the evidence on record and having regard to the stand taken by the defendants, this Court is of the opinion that the findings of the learned courts below that the sale deed in question, Ext.-3, was not proved, has to be rejected.
32. The Courts below have also held that the suit was barred by limitation due to adverse possession. Even if the finding of the learned Courts below regarding possession of the defendants for some length of time is held to be correct, then also the same does not amount to adverse possession.
33. In Chatti Konati Rao (supra), it was held that mere possession, however long, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner''s title. It was also held in Chatti Konati Rao (supra) as follows:-
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law."
34. In T. Anjanappa (supra), the Apex Court laid down as follows:
"20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possessions in denial of the true owner''s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former''s hostile action."
35. There is no pleading whatsoever to establish the factum of adverse possession except for a solitary statement that the suit is barred by adverse possession. In paragraphs 5, 6, 7 and 8 of the plaint, averments were made by the plaintiff with regard to allowing the predecessor of the defendant to reside in the suit land as a licencee. There is no denial to such plea in the written statement.
36. In view of the above discussions, the substantial question of law is answered in favour of the appellant. The appeal is allowed. The impugned judgments are set aside. Plaintiff''s suit is decreed. No cost.
37. Registry will send back the records.
